International law legitimacy and the UN Security Council

Abstract:

The salient issues concerning the powers of the United Nations Security Council culminate in questions of legitimacy. In terms of the United Nations Charter, the Council has a wide margin of discretion, and while its powers of appreciation are generally accepted as non-justiciable, its members are not independent. The Council has often been criticised for its selective performance, its composition and privileges of tenure, and the lack of transparency in its procedures. The objective of this study is to establish an analytical framework of legitimacy for the Council. As a point of departure, the study examines the limitations to the powers of the Council under the auspices of international law. These are expressed in two categories: the UN Charter, and jus cogens. Thereafter, the study develops a model of the content of legitimacy for the Council, based on a notion of legitimacy which encompasses legal, moral and sociological aspects. Three traditions are at the heart of this model. These are the instrumentalist, procedural and constitutional traditions respectively. The established framework proposes a minimal threshold for the Council to legitimately exercise its discretion, as an extension of the Charter based legal threshold, from which the Council derives its authority. The study is inspired by efforts in literature, to develop the new value-based approach to international law, whilst maintaining the coherence of the international legal order. The established framework provides a feasible means to assess the legitimacy of the Security Council, and in tandem provides space for further research.